Mencap sleep-in case to be heard in Supreme Court

Mencap has said the care sector has been "plunged back into uncertainty" after the Supreme Court announced it will hear an appeal against a landmark ruling made in favour of the charity.

Workers union Unison hailed the Supreme Court's decision to hear its appeal, which it said would offer a chance to clarify minimum wage law for care workers and their employers "once and for all".

The Royal Mencap Society v Tomlinson-Blake case relates to social care workers on "sleep-in shifts", whereby they provide overnight on-call support to patients but are expected to sleep through the majority of the shift.

For these shifts, employers like Mencap historically paid flat-rate fees at rates below the minimum wage.

Former Mencap employee Clare Tomlinson-Blake successfully challenged the legality of this, with employment tribunal hearings in 2016 and 2017 ruling that she was entitled to back-pay for historic underpayment.

However, this was overturned by judges in the Court of Appeal last year, to the relief of some charities as it meant that they would not have to foot large back-pay bills to workers.

But now Unison, which represents Tomlinson-Blake, has been granted permission by the Supreme Court to appeal the Court of Appeal ruling.

If the Supreme Court rules against Mencap, it could lead to social care charities and other employers of staff that work sleep-in shifts having to pay back pay and penalties to large numbers of staff.

Care charities have estimated this could cost the sector about £400m and result in some organisations going bankrupt.

Matt Wort, employment lawyer at Anthony Collins Solicitors, said that although the date for the Supreme Court hearing has not been announced, it "has been confirmed to me that it will not be until October 2019 at the very earliest".

'Plunged back into uncertainty'

Jan Tregelles, chief executive of Mencap, said the Supreme Court’s decision to hear the appeal “plunges the care sector back into uncertainty” and called on the government to legislate so the position on whether minimum wage laws apply to sleep-in shifts is clear.

“For us, this was not about what we currently pay our dedicated support workers for sleep-ins. We pay National Living Wage rates and have no plans to stop.

“We did not want to bring this case, but had to because the prospect of having to make large unfunded back payments threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their carers.

“What is clear though, is that dedicated care workers deserve a better deal. They work hard and support some of the most vulnerable people in society, but many are among the lowest paid.

“We call on government to ensure that the social care sector and, in particular, the specialised support that is required for people with a learning disability is properly funded and its workers are paid what they deserve in the future.”

Meanwhile, Rhidian Hughes, chief executive of the Voluntary Organisations Disability Group, said that social care charities have “grave concerns” over the lack of clear regulations.

He said: “We are calling on government to consult widely with workers, employers, commissioners and other stakeholders and clarify what hard working staff are entitled to, and precisely how it, and commissioners, will fund essential overnight support.”

'Extremely good news'

Dave Prentis, Unison general secretary, said the decision from the Supreme Court was "extremely good news".

He said: "Last year’s judgment has meant uncertainty for employers and care staff alike. Now there’s the chance to clarify the law once and for all.

“Care employees are working on sleep-in shifts so this time should be counted as working time.

"They aren’t free to come and go as they please and, as often the sole member of staff, they’re likely to be on their feet for much of the night."